Barnsley Metropolitan Borough Council (202126833)

REPORT

COMPLAINT 202126833

Berneslai Homes

7 December 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. The complaint is about the landlord’s decision to remove trees from a garden area outside the resident’s property.

Background

2. The resident is a leaseholder. The landlord is an arms-length management company who has delegated responsibility for providing housing management and maintenance services on behalf of the local authority. The property is a first floor flat.
3. On 4 December 2020, the landlord noted that the resident reported that his flat “suffered from serious cracks to the ceiling and walls.” It noted that the resident said that his tenant had moved out due to concerns that the ceiling would collapse, and that his insurer had suggested that the issues had resulted from subsidence from the ground floor flat.
4. To investigate the issue, on 9 December 2020, the landlord raised the following job: “Front corner excavate trial hole.” On 7 January 2021, the landlord’s surveyor reported the following; “… foundations are deep over 2 foot with a concrete slab. No damp found in the cavity.” The surveyor suggested that the trees were the cause of the issue and said that the resident had agreed to the removal of some of them, providing that the landlord installed a fence in their place. It requested that a job was raised to remove some of the trees, with further consultation on which trees to remove.
5. On 21 January 2021, in internal correspondence, another of the landlord’s surveyors reported that they had consulted with the previous surveyor and attended the property with an arborist. This surveyor reported that they agreed “that the mature conifer trees have contributed significantly to the drying out of the subsoil around and under the property … The significant size and number of these trees are more than sufficient to give continued cause for concern regarding future settlement of the property with an ongoing prospect of further damage until some or all of the trees are removed.” They recommended that all trees were removed, implying that this was more practical than having to undertake continuous works to manage their growth.
6. After consulting with its legal team, the landlord wrote to the resident on 1 February 2021, and advised him that “[he] the leaseholder has a right of access and use of the land in question but it is not part of the legal demise under the lease. The Council is the unencumbered freehold owner and may manage this garden land, as it sees fit, including felling trees.” It said it had felled three of the trees already, but explained that it intended to remove the remaining trees due to the likelihood that they had caused damage to the building, and to prevent this from happening in future. It said it would do this before the end of the month to avoid bird nesting season.
7. The resident made a complaint to the landlord on 16 February 2021. To his dissatisfaction, the resident said that he had discovered that all of the trees had been removed the day before (approximately twenty in number). He wanted to know why the landlord had removed them, as he felt that the landlord had undertaken this without any evidence that they were the cause of the cracks in the property, and without discussing this with him further. He asked to see a surveyor’s report. The landlord sent its stage one response, and a year later the resident asked to escalate the complaint.
8. The landlord issued its final response on 24 February 2022. It explained that to determine the cause of the structural issues and the subsequent remedial action it took, it relied on the recommendations of its qualified staff. It also reiterated that it had consulted with its legal team for advice during the process. It said that in removing the trees, it had acted in accordance with the resident’s lease, and that it did not need to obtain a third-party structural report as it had qualified professionals within the council to make that decision.
9. The resident referred his complaint to this Service as he was unhappy that the trees had been removed without a “proper” structural report. He said that the removal of the trees devalued his property between two and three thousand pounds, and wanted the landlord to compensate him for this as well as for time and trouble to resolve the matter. The resident was also unhappy as he said that the landlord charged him for a fence to replace the felled trees.

Assessment and findings

The lease agreement

10. The resident’s lease agreement sets out the part of the building that is demised to him (the part of the property that he owns). This does not include land, but the lease does give the right to exclusively use an area of garden outside of the property. It is understood that the trees were located within this area of garden.
11. According to the lease, the landlord is responsible for keeping in good repair, the roof, outside walls, and other parts of the block, the structure, including the main timbers, and common areas.

Scope of Investigation

12. The resident has mentioned being dissatisfied with being charged for a fence the landlord erected in replacement of the felled trees. The evidence does not show this matter was raised as part of the resident’s initial or stage two complaint, and therefore will not be considered in this investigation, as the landlord first needs to be given the opportunity to consider this at both stages of its complaints process before the Ombudsman can investigate. It is open to the resident to make a complaint to the landlord about this issue and, once the formal complaint process has been completed, refer to the Ombudsman if he remains dissatisfied. The Ombudsman understands that the charge the referred to formed part of the service charges: The resident should be aware that that there are some aspects of complaints about service charges that fall outside of the Ombudsman’s jurisdiction.
13. In his complaint to this Service, the resident has reported a reduction in the value of his property due to the removal of the trees, and wants the landlord to compensate him for this amount. This will not be considered in this investigation for two reasons. Firstly, it was not seen in the evidence that this request was bought to the landlord’s attention, therefore it has not had the opportunity to respond to this aspect of the complaint. Secondly, it is beyond the remit of this Service to determine liability for damages relating to the value of property or otherwise.

The landlord’s decision to remove the trees

14. In line with the terms of the lease, when the resident reported concerns about the structure of the building, the landlord was obliged to investigate this and take action where necessary. It did so by excavating a trial hole to check for damp, and then taking action on the surveyor’s subsequent suggestion that the trees were the cause of the issue.
15. In light of the initial surveyor requesting further consultation regarding which trees to remove, it was appropriate that the landlord undertook another inspection in January 2021, particularly as the resident expressed at that time that he was not satisfied that the trees were the cause of the damage to the building. The subsequent surveyor agreed that the trees were the likely cause of the structural damage, and recommended that all trees should be removed.
16. It was reasonable that the landlord relied upon the opinions of its qualified staff as to the cause of the damage to the block, and the appropriate action to address this. The records shows that the surveyors provided explanations for the findings, determining that the trees had contributed significantly to the drying out of the subsoil around and under the property. Trees and large plants in close proximity to property, are a known cause of subsidence issues, due to them absorbing all the moisture from soil, causing it to dry out and shrink. The landlord appropriately explained to the resident that it would remove the trees, “not due to the size of the roots but the drying out of the soil”.
17. The landlord appropriately wrote to the resident on 1 February 2021 after making enquiries with its legal team, and notified him of its intentions to carry out the work before the end of that month. In response to the resident’s subsequent complaint about not having been notified of the works, the landlord appropriately highlighted that it had written to the resident, and again referred to its surveyor’s findings. It explained that taking no action posed a risk of further damage being caused to the structure of the block, which it correctly noted it had an obligation to maintain under the lease, in addition to its responsibility to maintain its housing stock and to ensure the safety of the occupants of its properties. In that regard, and in light of the surveyor’s recommendations, the landlord acted fairly and in line with its obligations in undertaking the work recommended
18. It is also reasonable that the landlord acted quickly to remove the trees, in order to prevent the possibility of them causing further damage, and because of the legal implications of potentially having to deter birds during the approach of nesting season, which may have prevented or considerably held up the work.
19. The resident’s particular outstanding concern is that he believes that the landlord did not commission a “proper” structural report to justify its decision to remove the trees. While the Ombudsman acknowledges the resident’s view on this, as stated above, it was reasonable for the landlord to rely on the professional opinions of its qualified staff. The landlord also provided the resident with a copy of the surveyor’s email of their findings following the inspection in February 2021, which was a reasonable attempt to address the resident’s concerns.
20. Considering the above, in conducting its investigations, the Ombudsman relies on contemporaneous documentary evidence to ascertain what events took place and reach conclusions on whether the landlord’s actions were reasonable in all the circumstances of the case. In that regard, the evidence shows that the surveyors reported their findings to the landlord at the time of their investigations, prior to the works being undertaken. The second surveyor agreed with the first, that the trees were the cause of the issue. The landlord clearly set out its position to the resident regarding the actions it would take it relation to the recommendations made. Nothing in the evidence seen in this investigation shows that the advice the landlord followed was incorrect, or that the cause of the structural damage was assessed as likely being caused by anything other than the trees. Therefore, the landlord’s handling of the matter and the associated complaint was reasonable in the circumstances, and it acted in line with its obligations under the terms of the lease in keeping in repair the structure of the property.

Determination

21. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord.